Homes or Conservation Zone?

VILLAS – Residents packed the Feb. 7 Lower Township Zoning Board meeting to hear a use variance application to allow 21 single-family dwellings to be built on a Shawmount Avenue parcel in Villas.
The tract is mostly in the Conservation Zone in the Cox Hall Creek Wildlife Management Area (WMA) where residential development is not an allowed use.
While they heard the arguments for and against the variance, they also heard testimony that the conservation designation may have been mistakenly applied to the tract.
The applicant and a resident legally opposing the subdivision got to make their respective cases during the three-hour meeting. There was no time for public comment, which will have to wait until March 7.
That continuance didn’t stop some residents from making their feelings known.
“This isn’t a ball game. There’s no calling out ‘batter, batter.’ We are recording a proceeding here and can’t have the calling out,” said Zoning Board Chairman James Hanson at one point. He had to bang the gavel more than once during the meeting to stop the jeers from the audience.
The use variance was submitted by Marcello Magavero, whose attorney, Jeffrey Barnes said he is the contracted purchaser. Susan Andressi, Inc. is listed on the application as the owner.
The right to build on this lot occurred in the past, Barnes explained to the board. However that variance expired due to lack of sewer and water available to the site and the owner’s failure to renew the variance. Public water and sewer could be extended to the site.
Barnes also explained that the former golf course, known as Ponderlodge, went through bankruptcy in 1997. The state Department of Environmental Protection bought the property from a bankruptcy court in 2005, but the lot in question was previously conveyed to the current owner in lieu of payment from the bankruptcy and has been privately owned since that time.
That fact was lost when the township reviewed the master plan in 2009 and rezoned the lot to Conservation District in 2010. The master plan was again reviewed in 2012 and the zoning for the tract was not changed.
Barnes asked Lower Township Planning Director William Galestok if the zoning would have been changed to conservation if the Zoning Board knew the plot was privately owned.
“The zoning board would not have changed the zone if we knew it was a privately-owned property,” Galestok responded.
That exchange brought up a conversation about inverse condemnation, in which the government takes private property, but fails to pay compensation and economic inutility, where a property becomes useless to the owner due to something like a change in zoning or other reasons.
Attorney Justin Turner, representing Shawmount Avenue property owner Ellen Seward, who opposes the variance, reminded the board that those issues were not for the zoning board to decide.
Barnes agreed, explaining why the applicant didn’t go right to a judicial remedy.
“The applicant must exhaust all means of remedy before seeking legal recourse,” Barnes said.
Engineer John Kornick and Planner Tiffany Morrissey presented the case for allowing the use variance, showing how the 21 homes would not negatively impact the area and pointing to the fact that a similar variance was allowed in the past, while Turner produced experts who spoke to the environmental sensitivity of the property.
Seward, an Environmental Steward through Rutgers University, who wrote her research paper on the importance of Cox Hall Creek WMA, testified that the area doesn’t need additional houses.
Turner also called John Halbruner, a licensed architect and engineer, who spoke to the importance of threatened species on the property.
“The state has designated this property a 4 out of 5 on the scale of environmental importance due to at least one endangered species known to be there. The conservation designation is not a mistake,” Halbruner said.
Dr. Emile DeVito, of the New Jersey Conservation Foundation, named the endangered species on the site.
“The eastern gray tree frog has been found in vernal ponds just 15-feet from this site. The loss of this property would impact that population in a negative way,” DeVito said.
Cape May Bird Observatory Program Director Brett Ewald noted the importance of the area to bird migration.
“Cape May County is a world-renowned migratory bird corridor. That property is a dense stand of mature trees. It is of immense value. The endangered red-headed woodpecker has been spotted on this property. It is an important buffer,” Ewald said.
Both sides wrapped up their presentations right around the time the zoning board stopped taking testimony, 10 p.m.
That left no time for public input, so Hanson postponed that portion of the meeting until the March 7 meeting at 7 p.m. at Township Hall, 2600 Bayshore Rd.
To contact Carl Price, email cprice@cmcherald.com.